A few weeks ago I opined that a Republican takeover of the Senate wouldn’t change much of anything because the House already stands in the way of almost anything Obama wants to do. But Jonathan Chait points out that there’s one role specific to the Senate that could be a very big deal if the Republicans take over:
The potential for true crisis lies in the smaller possibility of a Supreme Court vacancy. The Democrats’ nuclear option allowed them to fill a regular judicial seat with a straight majority vote, but did not allow them to fill Supreme Court seats this way.
Imagine 75-year-old Stephen Breyer, or 81-year-old Ruth Bader Ginsburg, decides to retire. Perhaps they suffer a health setback, or simply grow tired of the grinding conflict, or perhaps warm to the logic of stepping down when an ideologically friendly jurist is likely to replace them.
Would the Republican majority let Obama appoint a mainstream center-left nominee to the seat? The last vacancy occurred in 2010, before Republicans swept into control of the House. Even though Obama’s nominee, Elena Kagan, possessed sterling bipartisan support, a mere five Republican senators voted for her confirmation. Three of them — Richard Lugar, Olympia Snowe, and Judd Gregg — have departed, and the GOP caucus emerged from the 2010 Tea Party wave filled with terror at any vote that could even hint at ideological treachery.
Now imagine a different possibility. Suppose one of the five Republican-appointed seats opened up. None of them would voluntarily surrender a seat at the end of a Democratic president’s tenure, of course. But when the hypothetical gavel transfer to Mitch McConnell takes place next January, Antonin Scalia and Anthony Kennedy will both be 78 years old. The actuarial odds of a 78-year-old man dying within a given year are approximately 5 percent — we will have two of them, with two years of Obama’s term each. (The odds of death rise to 5.6 percent at age 79, for those morbidly inclined.) We are not talking about a freak occurrence.What would happen then? Would a Republican Senate let Barack Obama — fundamental transformer of America, shredder of the Constitution — appoint a new swing justice? Given a backdrop in which conservatives, having grown deeply pessimistic about their political future, have invested deeply in a legal movement that uses aggressive readings to roll back the state? With every conservative interest group mobilizing for battle, with a vast array of social and economic policy hanging in the balance?
It may seem implausible that Republicans would simply refuse to allow Obama to appoint any justice to such a vacancy. That is only because things that haven’t happened before are hard to imagine. But such a confrontation is not only a logical outcome but the most logical outcome. Voting to flip the Supreme Court would be, if not a political death warrant for a Republican Senator, then certainly taking one’s political life into one’s own hands. Politicians do not like political death warrants — certainly not for the benefit of the opposing party’s agenda.
The modern pattern in American politics is that tactics that are legally available, but never used for reasons of custom, eventually become used. The modern pattern is also that the Republican Party, which is the most ideologically cohesive and disciplined party, leads the way.
That’s a good point, though I think it’s considerably more likely that a vacancy would come from the liberal side of the court in the next few years. But regardless of how it might come about, add one more conservative justice to the Supreme Court to replace one of the more liberal members of the court and we are well and truly fucked.